ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00008754

Parties:

A Legal   SecretaryFirm of Solicitors   

Complaints:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00011265-001 11/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00011265-002 11/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 CA-00011265-004 11/05/2017  Date of Adjudication Hearing: 07/11/2017 Workplace Relations Commission Adjudication Officer: Ewa Sobanska

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.   The complaints under S. 77 of the Employment Equality Act, 1998 and S. 18 of the Parental Leave Act, 1998 were withdrawn at the hearing.

Background:

The Complainant commenced employment with the Respondent as a Legal Secretary on the 13th January 2015. She was paid €1,450 a month and worked 22 hours weekly. She tendered her resignation by email of the 6th March 2017. She gave three weeks’ notice and her employment ended on the 28th March 2017. The Complainant asserts that she was constructively dismissed and submits this claim pursuant to the Unfair Dismissals Act, 1977. The Respondent refutes the claim and contends that she resigned voluntarily from her position.

Preliminary matter:

The Respondent raised a preliminary matter of the redress and mitigation of loss. In her Complaint Form the Complainant stated that she is seeking compensation. She also stated that she has not taken up employment since her dismissal. The form was submitted to the Workplace Relations Commission on 11th May 2017.

At the outset of the hearing, when asked by the Adjudication Officer whether she has secured a new employment since her dismissal and what attempts has she made to secure alternative employment, the Complainant stated that: - she started new employment on the 28th June 2017, - she works three days a week, 21 hours in total, - she is paid €270 gross a week, - she didn’t send any applications as such, - between 28/03/2017 and 28/06/2017 she was in receipt of the Department of Social Protection   benefits. The Respondent submits that the Complainant had secured new employment prior to giving her notice to the Respondent and started in the new job much earlier than June. In the subsequent cross-examination, the Complainant stated that she started employment on the 7th or 14th April 2017. She was not able to explain the inconsistency of her statements.   When asked as to why she included incorrect details in the WRC Complaint Form, the Complainant said that the form was filled in before 11th May 2017 and she should have informed her solicitor about the change in circumstances after she had secured the job. Mr O’D, the Complainant’s new employer gave evidence. He confirmed that the Complainant was interviewed in the end of February 2017 and during a telephone call during the 1st week of March she indicated she would take the job. She attended one day trial in the end of March and started her employment on 6th April 2017. She is working three days a week 9am-5pm.

Summary of Complainant’s Case:

The Complainant submits that she worked for the Respondent from 13th January 2015. Her working hours were completed on a flexible basis, at times of her choosing. Her working day commenced between 8am-8.30am and she worked until 4pm-4.30pm.   She received a contract of employment in August 2015 that provided for 22 hours work over three days. This contract further stated that the normal hours were 9am to 5.30pm over three days. The Complainant submits that, from the outset, she never worked later than 4.30pm as she had to collect her child at 5.30pm. In addition, Ms A (Partner) was flexible on the actual days that the Complainant worked. The Complainant submits that she would not have taken the job if the hours of work were different. She submits that she queried the details of her contract but was told it’s “a point of procedure”. On 18th September, 2015 the Complainant’s husband underwent an emergency medical operation. She requested and was granted time off between 18th and 24th September 2015 by Ms A. Her husband was subsequently diagnosed with cancer on the 23rd September 2015. At the time the Complainant was 16 weeks pregnant. She requested and was granted the remainder of the week off (ending 27th September 2015). She was contacted by Ms A on 1st October by telephone. Ms A was unsure as to when was the Complainant returning to work. It was agreed that, having attended at a scheduled medical consultation with her husband the following day, she would contact the Respondent and confirm her return date. It was then agreed that she would return to work on the 6th October 2015. She was given no indication that it was in any way problematic. Upon her return to the office, the Complainant was informed that she was required to have a conversation with Mr. B, Partner and Head of HR on the basis that she had taken time off work without permission. Mr. B stated that the Complainant failed to revert to Ms A about when she would be returning to work. The Complainant subsequently emailed Mr. B seeking Force Majeure leave for 23rd and 24th September 2015 and confirming that while she had sought to work up the hours in lieu of the rest of the absence Mr. B was treating the absence as unpaid leave. This was confirmed by Mr. B. The atmosphere between the Complainant and the Partners was incredibly stressful from that date. The Complainant informed the Respondent of her pregnancy at around 13/14 weeks and was now requested to provide proof of all antenatal visits going forward if she required time off. The Complainant accepts that the employer was entitled to do this but it is noteworthy that it had not been required up until that point. On 17th November, 2015 the Complainant received an email from Mr. B requesting that she meet with him and Ms A at 4.30pm that day to discuss “issues regarding her absenteeism / changing of working days”. A copy of her Terms and Conditions of Employment and the Employee Handbook were attached. The Complainant responded by email that she had been in since not long after 8am and worked through her lunch so would be leaving at 4.30pm. She asked that an independent party be allowed to attend any meeting and therefore asked for 24 hours’ notice of any meeting. On 18th November, 2015 the Complainant met with Ms A informally with a view to regularising her working hours. It was agreed that she would work from 8.30am to 4.30pm on Mondays, Tuesdays and Wednesdays with an allocated 45min break. The Complainant worked these hours until approximately 15th January 2016 when she was signed off work by her GP due to a pregnancy-related condition. Her maternity leave began then. She was diagnosed with post-natal anxiety around 12 weeks post-partum and when her maternity leave finished she went on sick leave. She informed the Respondent that she would return to work in December 2016/January 2017. During this period Ms A was doing some conveyancing on the Complainant’s house purchase so she was in contact with her and everything seemed fine. In early January 2017, the Complainant was in touch with the Respondent in relation to a holiday pay error. The Respondent asked the Complainant to come in for a chat but, as she was still on leave for approximately two weeks and the holiday pay confusion was sorted out she did not do so. The Complainant returned to work on 24th January 2017. She arrived at 8.30 am as usual. Due to re-organisation in the firm she was now required to work with Mr. B. When she was leaving at 4.30pm Mr. B asked her if Ms A talked to her about her hours and said he would discuss it with her the following day. The following morning the Complainant was called into a meeting with both partners and told that she would be now required to work 9am-5.30pm as set out in her contract in order to cover reception duties. The Complainant explained that with her childcare commitments those hours did not work for her and the only reason she took the job initially was due to the ability to finish earlier. She told the Respondent that she would talk to her Union representative and would look into alternative childcare arrangements. The following week she agreed to cover reception while the receptionist was on leave. In or around 21st February 2017 Mr. B asked again the Complainant to discuss changing her hours, the Complainant reiterated that she could not do the hours required. She suggested a compromise of 5pm finish, it was declined. She asked if there was any extra remuneration on offer and was told no. On 27th February 2017 the Complainant found an envelope with a letter from the Respondent together with a copy of her Contract and the Employee Handbook on her desk. The letter suggested that the arrangement entered into regarding her hours and days was to facilitate her in the weeks prior to her going on maternity leave. She was advised that “If you feel that you have a grievance that has not been addressed please utilize the Grievance Procedure set out in the Employee Handbook and set that grievance out in writing and we shall investigate same”. After taking advice from her Union representative, the Complainant sent an email setting out her grievance on 2nd March 2017. The grievance procedure provides that in the first instance a grievance should be raised with the immediate superior/partner. In the event that the matter concerns the immediate supervisor/partnerthen the matter should be brought to the attention of the HR manager or another partner in the firm. The Complainant received an acknowledgement of her grievance by letter dated 3rd March 2017 from Mr. B who was the HR Manager and one of the partners she had an issue with. The letter gave her no comfort that the grievance would be dealt with other than in accordance with the grievance procedure as set out in the Employee Handbook and this had been made clear in the letter of 24th February which stated “we shall investigate same”. In effect, the Complainant was being asked to have confidence in a process whereby Mr. B would be hearing a grievance about a decision that he had made with Ms A and one he had already made clear his position on. Over the weekend of the 4th/5th March 2017 the Claimant’s children both became extremely ill and on Monday morning she took her daughter to the GP. When she came out of the doctor’s surgery in or around 10am she had a missed call from Mr. B. She phoned him back immediately and apologised for the late notification that she would not be at work that day or the next. She had annual leave booked after that and would return to work on the 14th March. Mr. B was not happy and his tone was quite curt and dismissive and it was clear at this stage to the Complainant that she could no longer continue to work for the Respondent as there was a fundamental breach to her contract and an absolute breakdown in the relationship. She tendered her resignation on Monday the 6th March to which she received reply dated the 6th March. The Complainant submits that she was constructively dismissed by the actions of the Respondent in attempting to force her to agree to a fundamental change in her terms and conditions of employment. It was entirely reasonable in the circumstance to resign without engaging in the grievance procedure.  

Summary of Respondent’s Case:

The Respondent submits that the Complainant was a very competent and qualified employee. They had a very good relationship. Ms A did conveyancing on the Complainant’s house purchase and did not charge the Complainant. However, from the outset there were issues in relation to her time-keeping and absenteeism. The Complainant received an offer of employment letter from the Respondent on the 15th December 2014 which clearly outlines that her “normal working hour will be 9am to 5.30pm and we confirm that the position is currently for three days a week”. She subsequently received her Statement of Terms and Conditions of Employment which outlines her hours of work as: “6.1 You are normally required to work 22 hours a week over three days,6.2 Your normal hours of work are 9.00am to 5.30pm over three days (flexi) per week, as agreed with your supervising solicitor, with a break of 75 minutes for lunch to be taken between 1.00 pm and 2.15 pm…” The Respondent submits that there was no other, parallel agreement in respect of the hours of work. At the start of her employment the Complainant ‘s attendance was good but she soon became unreliable in terms of time-keeping. The Respondent disputes the Complainant’s assertion that she has never worked later than 4.30pm. The Respondent submitted samples of the Complainant’s work email activity, which show that she regularly worked beyond 4.30pm and even 5pm. The Respondents disputes the Complainant’s evidence in relation to the flexibility of her days/times of work. The Respondent agreed that they introduced an arrangement in November 2016 relation to the hours of work whereby the Complainant was required to work 8.30am-4.30pm Mon-Wed. This was however, temporary arrangement for the weeks leading up to the Complainant’s maternity leave mainly to regularise her attendance and hours of work. The Respondent submits that the Complainant was invited to utilise the grievance procedure and the Respondent received her email outlining her grievance on 2nd March 2017. On the same day, Mr. B contacted by email an independent HR consultant stating that “given that we are a small enough practice with 2 partners we feel it might be better if we brought in an independent person to chair a grievance meeting and deal with the issue.” A letter acknowledging the Complainant’s letter of grievance was issued to her on Friday, 3rd March. The Respondent noted that they “expect to be in a position to revert to you shortly regarding the matter”. However, a letter of resignation was received by the Respondent on Monday, 6th March.   Evidence of Ms A (Partner) Ms A confirms that the job offer was 3 days (flexi) from 9am to 5.30pm. She contends the Complainant’s evidence in relation to the flexibility of the time of work. From an employer’s point of view, it would not be possible to run an office without knowing when an employee would be at work. Standard practice in the office is that all employees on flexi days use a board where they write a week in advance the days they would be working on. However, with the Complainant it soon became an issue as she would not advise in advance what days would she be available for work. At times, Ms A would have to text her to check if she was coming to work. The Complainant would also be late or leave as soon as Ms A was gone. Her attendance was poor and she couldn’t manage her flexi time. When the Complainant’s husband became ill Ms A asked the Complainant to contact the Respondent with an update on the 24th September. As there was no contact Ms A had to contact the Complainant on 1st October. Ms A met the Complainant on 18th November to regularise her hours as she was struggling with her time-keeping. Ms A stated that the firm has got much busier and not knowing whether or not the Complainant would be present their work became unmanageable. They agreed on a temporary arrangement of Mon-Wed 8.30am-4.30pm with 45min lunch break. This was to be in place until her maternity leave.   However, the Complainant still didn’t adhere to these hours and would arrive late and leave early. In cross-examination Ms A stated that the Complainant has never been disciplined for her poor timekeeping. She also acknowledged that no comment re: absenteeism and timekeeping was made in her email of 18th November 2016 to Mr. B. Equally, in the email there is no reference to limitation in respect of pre-maternity period, short-term arrangement. However, Ms A stated that she spoke with the Complainant about it for a long time and made it clear in their discussion. She did not recall the Complainant’s offer of finishing work at 5pm. She also didn’t recall the Complainant’s query in relation to the flexibility in terms of days worked.   Evidence of Mr. B (Partner) Mr. B stated that, as the HR Manager he sent the Letter of Offer to the Complainant and there has never been any verbal agreement. He submitted that the Complainant had never queried her hours of work as outlined in the contract. He emphasized that the Complainant is a very competent person and would have asked if she had any problem with the contract. In respect of the arrangement of the 18th November 2016, Mr. B stated that he was aware that it was temporary arrangement to regularise the Complainant’s hours to ensure that she was there. In cross-examination, Mr. B told the hearing that the Complainant was a very experienced legal secretary and when she was at work she was a very good worker. She was not disciplined for such a long time as the Respondent realised how difficult it is to recruit an employee with her experience. However, the Respondent needed some degree of certainty. Following the Complainant’s return to work in November 2016 he spoke with the Complainant and explained to her that they need to know what days would she be at work. He clarified that the business has grown and to meet its need she is required to work the contractual hours. He met with her but they never had a proper conversation as the Complainant would get upset and would cry. She asked for and it was agreed that her Union representative would attend the meetings. Subsequently a letter was received from the Union on 28th February 2017 but the representative never met with the Respondent. The Complainant was invited to utilise grievance procedure and she did so. In cross-examination the Counsel for the Complainant asked Mr. B why no assurance was given to the Complainant that the grievance process would be dealt with by an independent person noting that the Handbook says “we shall investigate same”. Mr. B stated that he contacted an independent HR expert to conduct the grievance process on the day the grievance email was received. He did not inform the Complainant about it as he was awaiting reply from the HR person first.  

Findings and Conclusions:

S.8 of the Unfair Dismissal Act, 1977, as amended provides for making complaints regarding unfair dismissal in contravention of S.6 of that Act. For a claim of constructive dismissal to be properly brought under the Act, the Complainant must satisfy the definition in Section 1(1)(b) of the Act, which defines “constructive dismissal” as “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”. The burden of proof in constructive dismissal lies with the Complainant. In Allen v Independent Newspapers (Ireland) Ltd. 2002 ELR 84) it was held that the onus is on the Complainant to prove his case and the test for the Complainant is whether it was reasonable for him to terminate his contract. As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”  In Harrison v National Engineering and Electrical Trade Union UD 406/1987 the Tribunal held that failure to pay wages was a fundamental breach of contract. In Byrne v RHM Foods (Ireland) Ltd UD 69/1979 it was determined that “the total isolation of the Complainant amounted to an undermining of the relationship of confidence and trust between the responded and the Complainant, such as to go to the root of the contract”. The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances. The Complainant must have acted reasonably in tendering her resignation. Redmond (2007) argues that ‘there is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative in employee’s resignation. Where grievance procedures exist, they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.[1]   I note that in the case before me the Complainant claims that the Respondent attempted to make fundamental changes to her contract of employment in relation to her hours of work which warranted her resignation. However, the Respondent claims that they merely asked to Complainant to actually work her contractual hours. I note that the Complainant’s Letter of Offer and the Statement of Terms and Conditions of Employment outline clearly that the hours of work are 9am to 5.30pm over three days a week. I note that in her email of 18th December 2014 Ms A sends attached “heads of terms” and asks the Complainant “any queries let me know”. The Complainant replies “…I’ll pop a signed copy into the post to you. Just one quick query. I’m down to start the 7th, do you require me to do 3 days that week?”. The Complainant was offered to query the terms offered to her and she did not do so. I note that the Complainant maintains that she queried the hours of work verbally with Mr. B. The Respondents categorically denies this. I note that the Complainant first stated that from the outset she never worked past 4.30 pm. However, the Respondent presented evidence confirming that the Complainant has worked as late as 5pm and, occasionally after 5.00pm. The Complainant in cross-examination altered her statement and said that she would have stayed later if necessary to finish up her work. The Complainant confirmed also that she was “late a few times” but she would always text the Respondent. The Complainant maintains that she has obtained advice from her Union representative. I note that a letter was sent to the Respondent confirming that they received correspondence from the Complainant that the Respondent “is seeking to change her contracted hours without agreement.” The letter further states that the Complainant “returned to work following her maternity leave on the same contract of employment” and the changes proposed “will have a serious and negative effect on our member and will leave her in position which is less favourable. We are aware that [the Complainant] has made her position clear and will not accept any changes to her contracted working hours.” I note that the Complainant stated that she did offer to work until 5pm. Regrettably, there is no evidence in her correspondence with the Respondent that such an offer was made. In her email of 22nd February 2017 to the Respondent, the Complainant offered to draft her suggestions in an email. However, it seems that it has never materialised. Equally, the Union representative is simply referring to her contracted hours. These, as outlined in the Complainant’s signed contract are 9am-5.30pm. On balance, I prefer the Respondent’s evidence regarding this matter. I am satisfied that the signed Letter of Offer and the Statement of Terms and Conditions of Employment unambiguously outline the required hours of work. I find that both parties began the employment relationship with the understanding that the normal hours of work would be 9am-5.30pm. However, it appears that the Complainant began varying her hours of work either by requesting changes to the days she was to work (which is supported by emails presented at the hearing), by arriving late or leaving earlier. Unwittingly or not the Respondent permitted such a behaviour until the business grew and such an arrangement became unmanageable. At which stage the Complainant was asked to work her contractual hours. Applying the relevant tests to the facts adduced in the instant case, I note firstly that there is no question of any breach of contract arising. I am not satisfied that the Respondent “is guilty of conduct which is a significant breach going to the root of the contract of employment.” I cannot find the above to amount to grounds for the Complainant to consider her contract of employment repudiated or that she had no choice but to resign. I cannot objectively construe the Respondent’s conduct towards the Complainant as being so unreasonable such that she was forced to resign in circumstances where there was nothing unreasonable about the Respondent requesting her to work her contractual hours. The Complainant must pursue and follow procedures for addressing their grievances as outlined in contract of employment or handbook. In Conway v Ulster Bank UD 474/1981 it was held that “the Complainant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaint”. In Tierney v DER Ireland Ltd. UD866/1999 EAT stated “Central to this is that she shows that she has pursued to a reasonable extent all avenues of appeal without a satisfactory or reasonable outcome having been achieved”.Similarly, the EAT case John Travers v MBNA Ireland Ltd. UD720/2006 stated “…the Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case… In constructive dismissal cases it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. In Keane v Western Health Board UD 940/1988 it was held that a knowledge that a grievance procedure exists is germane. I am satisfied that the Compliant was aware of the internal grievance procedures and was advised by the Respondent to utilise same. The Complainant confirmed that her Union representative has also advised her to initiate the procedure. The Respondent advised the Complainant to have a work colleague at the meetings to support her and agreed to have the Union representative in attendance. I note that the Complainant outlined her grievance in writing and the Respondent received it on 2nd March 2017 (Thursday). The Respondent provided evidence to show that they immediately contacted an independent HR consultant to assist them with the grievance process as they felt that, given the small size of the organisation “it might be better if we brought in an independent person to chair a grievance meeting and deal with the issue.” On 3rd March (Friday) Mr. B sent a letter to the Complainant acknowledging her letter of grievance in which he noted “we expect to be in a position to revert to you shortly regarding the matter”. Regrettably, the Complainant did not give the Respondent an opportunity to address the matter and handed her resignation on Monday, 6th March. I note the Complainant’s assertion that she believed that the matter would be dealt with in accordance with the grievance procedure as set out in the Employee Handbook and that she did not have confidence in a process whereby Mr. B would be hearing a grievance about a decision that he and Ms A had made. However, the Complainant did not express her concerns to the Respondent and did not allow the Respondent sufficient time to revert to her on how do they propose to address the matter. She made the decision to resign on the basis of her assumptions. I note that the Complainant attended a job interview in the end of February 2017, prior to giving her resignation and at some stage during the first week of March 2017 she accepted the new job. She gave her notice on the 6th of March and continued her employment with the Respondent until 28th March. She started her new employment on 6th April 2017. I am satisfied that she resigned from her employment voluntarily and therefore was not constructively dismissed.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.   Section 8(1B) of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this claim of constructive dismissal in accordance with the relevant provisions. Based upon the reasoning as set out aforesaid, I find this complaint to be unfounded and accordingly, the complaint fails.  

Dated:   18/12/2017

Workplace Relations Commission Adjudication Officer: Ewa Sobanska Key Words: Constructive dismissal- grievance procedures- contract and reasonableness tests  

[1] Redmond, M., “Dismissal Law in Ireland”, Tottel Publishing, 2007